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AlexiaEsq., Managing Attorney

Category: Family Law

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Experience: 19+ Years of Legal Practice in Family law matters.

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We live in Skagit County in Washington state. My question is

Customer Question

We live in Skagit County in Washington state. My question is whether or not previous agreements are void when a new or even temporary parenting plan is signed. My step-daughter was removed from her mother's home in April 2008 because of repeated abuse. A GAL submitted the temporary parenting plan and both parents signed it. The previous agreement was a 50/50 split for residential time with my husband as custodial parent and the mother had the right to claim the child on her taxes. My husband and I have been claiming my step-daughter on our taxes since 2008, but the other parent has been as well. In the 2008 parenting plan, my step-daughter resides with us primarily with limited visitation in the mother's home. She lives with us much more than 50 % of the time, my husband is the custodial parent, and we provide all of her financial needs. There is no assistance for medical, dental, or child support. The mother claims that because we didn't address who claims my step-daughter for tax reasons that she still gets to. In the past, previous parenting plans were void after the new one was signed.

Hello. The IRS changed the rules several years ago regarding which parent can claim a child in a divorce situation. Parents are no longer permitted to elect who claims the child -- and the child can only be claimed by the parent where the child resides more than 50% of the time. If you truly have a 50/50 residential split, then the parent whose address the child uses for school and other purposes would be the parent that can claim the deduction. If one parent gets caught claiming the child wrongfully, that parent can be subject to fines and penalties from the IRS as well as a loss of the child tax credit and/or the earned income credit if the parent's income level puts the parent in a tax bracket where those credits are available to them.

Customer :

When I called the IRS, they said they made no such change to the rules.

Mary M Esquire :

THere were changes to the rules that the parent that the child spends the greater number of nights with is considered the custodial parent -- but there are additional provisions to qualify as well.. Here is a good article summarizing what the changes were but they apply to agreements from 2009 and forward -- http://financialdivorceblog.com/2010/01/child-dependent-exemption-tax-deduction-and-divorce/ When did you actually sign the divorce agreement? and if you are making changes to it, the question arises whether or not the amendment will fall under this change in the rules.

Customer :

The parenting plan that stated the non-custodial parent could claim the child was in 2006. The GAL submitted and both parties signed a temporary parenting plan in April 2008.

Customer :

The temporary parenting plan changed my step-daughters residential time from 50/50 in each household to home with us full-time except every other weekend. With the other household's time being limited or restricted because of recurring emotional and physical abuse. My husband is the custodial parent and has sole decision making rights. The temporary parenting plan was in effect until February 2009, when a permanent parenting plan was signed. This parenting plan was the same except that holidays and special occasions were added.

Customer :

Also, the parents were never married.

Mary M Esquire :

The fact that the permanent parenting plan was signed in Feb 2009 could add a wrinkle in here where they have to go by the change in the rules. I am going to send this question over to our tax experts because of that 2009 change. You will not be charged for this time with me.

Customer :

In the past we were told that previous agreement were void as soon as we signed a new agreement.

Good evening. Your prior expert has alerted me that she has opted out, so I will try to assist you here.

For the following reasons I believe that the old agreement will not prevail as it pertained to custody then, which has been modified by the new agreement. Because the IRS deduction is intimately tied to custody itself, a judge would likely NOT find that the old deduction agreement to the then 50/50 mom, would continue, even though the old 50/50 parenting time no longer exists, and in fact a new agreement not including the waiver of the deduction to the mom, exist. In other words, you are right and I can not even imagine a judge holding otherwise. Yes, your husband could choose to give it to her, but not by any existing order. Moreover, the change in the IRS law on this, effective as of 2009, but changed via rules in 2008, certainly demonstrates that the IRS' new policy was that custodial parent gets the deduction by default, unless he gives it up, and to give it up, he must do so on a special IRS form now, unlike before.

In 2008, the new law your prior expert wisely noted, was created. Effective I believe for 2009, the IRS no longer allows for these agreements to fudge with deductions unless it is done in a certain way:

Section 152:...E. Support Test in Case of Child of Divorced Parents, etc.(1) Custodial Parent Gets ExemptionExcept as otherwise provided in this subsection, if:(a) a child (as defined in section 151(c)(3)) receives over half of hissupport during the calendar year from his parents:(i) who are divorced or legally separated under a decree of divorceor separate maintenance,(ii) who are separated under a written separation agreement, or(iii) who live apart at all times during the last 6 months of thecalendar year, and(b) such child is in the custody of one or both of his parents for morethan one-half of the calendar year,such child shall be treated, for purposes of subsection A, as receiving overhalf of his support during the calendar year from the parent having custodyfor a greater portion of the calendar year (hereinafter in this subsectionreferred to as the custodial parent).

(2) Exception Where Custodial Parent Releases Claim to Exemption for theYearA child of parents described in paragraph (1) shall be treated as havingreceived over half of his support during a calendar year from the noncustodialparent if:(a) the custodial parent signs a written declaration (in such mannerand form as the Secretary may by regulations prescribe) [see form 8332] that suchcustodial parent will not claim such child as a dependent for anytaxable year beginning in such calendar year, and(b) the non-custodial parent attaches such written declaration to thenon-custodial parent’s return for the taxable year beginning duringsuch calendar year.

......Here is the mandatory form that the dad would have had to have signed:http://www.irs.gov/pub/irs-pdf/f8332.pdf

either releasing his deduction each year individually (section 1) or noting that ALL years prospectively were to be released to the mom (section 2). Moreover, note that the form also contemplates the custodial parent REVOKING the release to the other parent, in section III.

I believe you and your husband have the winning case here, for the reason you say and in light of the IRS changes.

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That is a relief to know. We still have to get through the 2009 and 2010 audits when they come. We try to do everything by the book and be fair, but unfortunely the other party does not behave in the same manner. I hope you are correct. Thank you for the supporting information.

That is a relief to know. We still have to get through the 2009 and 2010 audits when they come. We try to do everything by the book and be fair, but unfortunely the other party does not behave in the same manner. I hope you are correct. Thank you for the supporting information.

There seems to be two prongs here: 1) what does the IRS require for a noncustodial (her) to take the deduction and 2) Will your Judge, if a motion was made, order you to fill out an 8332 to give her the deduction, despite the fact that the new agreement that became order did not provide her 50/50 custody and the fact that it didn't give her the deduction? We know the IRS requires the 8332, and doesn't care about the agreement. And we believe a Judge, based on the facts you provided, would not have a reason to every order she can take it, since you two didn't agree to it and there is no current order that you give up deduction AND, you have and support the child most....

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